¶1The order made upon the first motion to discharge the attachment is not controlling over this appeal, for the case was then heard and decided upon exparte affidavits, which appeared to entitle the plaintiff to an attachment in the action as one for the recovery of a sum of money due upon contract.
¶2Since then the action has been tried and the evidence has been obtained from the witnesses sworn upon the trial, and by their evidence it has been made to appear that the plaintiff is not entitled to recover for money owing upon a contract, but is entitled to maintain an action solely and only for an accounting between himself and the defendant as part owner of the vessel. In such an action an attachment cannot be had. (Thorington v. Merrick, 101 N. Y., 5.)
¶3The order denying the motion to vacate the attachment must be reversed, with the usual costs and disbursements, and an order entered setting aside the attachment.